Tanzania is now properly ‘on course’ towards the achievement of a new Constitution of the United Republic; a process which was initiated by President Jakaya Kikwete of the fourth phase government, but unfortunately became stalled under his successor, and could not proceed to its finalization. But, we are now happily back ‘on course’ towards achieving that objective. This assertion is based on our article of last week in this column, in which we referred to the general consensus which has now been reached regarding the need to revive the stalled process of putting in place a new constitution of the United Republic of Tanzania.
And, indeed, this appears to be the ‘greatest need for the greatest number of people’ ; as manifested by the mass and social media reports of the views expressed, and the submissions made, to the Presidential Task Force; which was tasked to “coordinate the peoples’ views regarding the necessary reforms that need to be made, in order to provide fair operating space to all political stakeholders”. However, for the successful accomplishment of this mission, there are certain crucial tasks that will need to be done, or should not be overlooked.
In one of my recent presentations on this matter, I made the point that because matters of the country’s constitution are, practically, not “bread-and-butter’ issues really that would generate concern, or active interest of the individual citizen, it is absolutely necessary for the Authorities to make arrangements for carrying out a special public awareness campaign, in order to activate that dormant interest and to promote his active participation in this process. ‘Public awareness’ is therefore the first, and the most important task.
But there are several others which will be highlighted in this presentation, in order to assist in enhancing such public awareness. Peoples’ awareness is an essential prerequisite that will help to facilitate the achievement of the desired objective; since proper ‘knowledge and understanding’ always empowers the people to make informed decisions.
In this presentation, we will focus on the principal factors which normally influence such constitution-making processes, as well as their applicability to the on-going ‘constitutional engineering’ process.
The relevant factors.
I had the good fortune of being appointed Member/Secretary of the commission which was tasked to make proposals for the (current) 1977 constitution of the united Republic; and that responsibility made it necessary for me to do all the necessary research, and mobilization, of the relevant materials; that would enable the commission to make informed decisions; an activity that enabled me to gain knowledge of these factors. They are the following:- (a) the political forces which are at work at the material time; (b) the ‘commonsense’ political considerations of practical convenience; and (c) the relevant precedents.
These factors are amply illustrated by looking at our country’s own constitution-making history. For example, the political forces which were at work during the making of the Tanganyika Independence constitution of 1961, which was cited as the “Tanganyika (Constitution) Order-in-Council, 1961” had made it necessary for that constitution to be enacted by the British Parliament sitting in London; and imported into Tanganyika by way of a Government Notice published in the Tanganyika Official Gazette, as GN 415 dated 1/12/1961.
Its provisions contained certain provisions which were clearly inconsistent with the peoples’ common understanding of the concept of independence; because it had created complex constitutional arrangements which, in fact, did not make practical sense to the ordinary citizen of Tanganyika; such as that which retained the Queen of England as the Head of State of independent Tanganyika; a provision which, in essence, meant that basically, Tanganyika continued to be governed by the Queen of England!
The British constitution-makers were relying on “precedents “ that had been created in the constitution-making processes for Ghana and Nigeria; which had been granted independence ahead of Tanganyika, in 1957 and 1960 respectively.
Needless to say, this created significant confusion, as well as disappointment, among the majority of ordinary citizens, who could not understand the rationale of a country being “independent” under such circumstances. Thus, acting under the “commonsense political considerations of practical convenience”; that constitution was soon replaced by our own ‘home-grown’ Republican constitution of 1962, which was duly enacted by the Tanganyika Parliament on 23rd November, 1962.
The Zanzibar Independence constitution of 1963 was made under exactly the same circumstances; and was similarly replaced by the peoples’ revolution which occurred hardly a month later, in mid-January, 1964.
In other words, there are certain historical circumstances which tend to determine, or to guide, the constitution- makers of the relevant time period.“Give us the tools, and we will finish the job” said Sir Winston Churchill in 1941. Thus, regarding the task of reviving the stalled constitution-making process, and in view of the fact that we already have the necessary tools in the form of the above mentioned factors (which have traditionally guided our past constitution-making processes); we will, surely, finish the job that is before us.
The guiding factors, and their applicability in the instant case.
(i) ‘The political forces at work’ : the Opposition parties persistent demands for a new constitution. Soon after the country’s return to the multi-party political dispensation in 1992, the need for a new multi-party constitution was the most vocal demand that was being expressed by the opposition political parties, who claimed that the existing constitution “only caters for the interests of the ruling party”. And this demand has persisted for all the 30 years period to date; falsely claiming that this “in-built constitutional bias is what produces negative election results against the opposition parties”. But this false claim is obviously based on a serious misunderstanding of the role of the constitution in the conduct and management of elections; because these electoral functions are governed not by the country’s constitution, but by the
Elections Act (no. 1 of 1985), as amended from time to time; which is a totally different law. And, indeed, this Act was extensively amended in preparation for re-entry into multi-party politics; with the aim of ensuring that it provides an even ‘playing field’ for all the participating political parties.
The fairness of the elections Act has been manifested in the numerous election petitions which have been fled in the High Court, starting with the first multi-party parliamentary general election of 1995; all of which show that all the complaints centered on the allegation that “the provisions of the election law (and/or the regulations made under that law) had not been complied with” . The fairness of the election law itself, has generally not been challenged, except in the isolated case of the provision relating to ‘traditional hospitality’ or ‘takrima’ ; which was struck down for being unconstitutional.
But, unfortunately, the misconception of viewing the constitution as the ultimate solution to such electoral complaints, has continued unabated. We pointed out some examples of such misconceptions in our article of 19th May, 2022, which was titled “The state of politics in Tanzania today”; wherein we referred to some of the reported submissions by various stakeholders to the Presidential Task Force; such as the Tanganyika Law Society’s submission challenging the involvement of District Executive Directors as returning officers, reportedly on the flimsy ground that “because they are government employees appointed by the President, they are likely to alter the election results in favour of their boss” . I challenged their rationale for associating such purely electoral reforms with the need for a new constitution; “which is the fundamental law of the country, and is clothed in a special form of sanctity, aimed at protecting it from any casual encroachment”.
The Opposition parties’ initial demand, was the convening of an “All-parties National Conference” which would discuss and finally determine the contents of a new multi-party constitution. On its part, the ruling party (CCM) strongly opposed that demand, on the firm ground that any such assembly of merely hand-picked people, would have no legal mandate to undertake the fundamental task of constitution-making.
The Opposition parties’ initial demand, was the convening of an “All-parties National Conference” which would discuss and finally determine the contents of a new multi-party constitution. On its part, the ruling party (CCM) strongly opposed that demand, on the firm ground that any such assembly of merely hand-picked people, would have no legal mandate to undertake the fundamental task of constitution-making.
But the demands for a new constitution have persisted; and this point was “hammered home” by CHADEMA Chairman Freeman Mbowe, in his recent speech delivered at the official opening of his party’s meeting of its Baraza Kuu. These are the political forces which require to be given special attention, by the current constitution-makers
(ii)“The commonsense political considerations of practical convenience”. We have illustrated above, how this factor greatly influenced the making of the Tanganyika Republican constitution of 1962. We need to examine its applicability to the present political situation and circumstances, which have been created by President Samia Suluhu Hassan of the sixth phase government of the United Republic.
(ii)“The commonsense political considerations of practical convenience”. We have illustrated above, how this factor greatly influenced the making of the Tanganyika Republican constitution of 1962. We need to examine its applicability to the present political situation and circumstances, which have been created by President Samia Suluhu Hassan of the sixth phase government of the United Republic.
The present political circumstances relate to the major efforts of political reconciliation that are being undertaken by President Samia, and fully supported by the ruling party CCM. This friendly atmosphere greatly facilitates the “soft landing” of the aircraft in which we are travelling; i.e. the achievement of the desired objective, of putting in place a new constitution that is acceptable to all parties; which we failed to achieve in 2014; when a significant section of Opposition political parties decided to withdraw from further participation in that process; expressing their serious concern at the rejection of the proposal to change the two-government Union structure.
(iii) The relevant precedents.
The word “precedent” means “an official action or decision that has happened in the past and that is seen as a good example or a rule to be followed in similar situations later”. The application of precedents in order to guide the making of a new decision in similar circumstances, is very common practice in the Judiciary, where past judgments or decisions, are often cited to justify a decision in a later, similar case.
(iii) The relevant precedents.
The word “precedent” means “an official action or decision that has happened in the past and that is seen as a good example or a rule to be followed in similar situations later”. The application of precedents in order to guide the making of a new decision in similar circumstances, is very common practice in the Judiciary, where past judgments or decisions, are often cited to justify a decision in a later, similar case.
In the on-going constitution-making process, the relevant, applicable precedent is the decision that was made it the matter of the transition to the multi-party political dispensation; where the decision was based entirely on the “commonsense political considerations of practical convenience”, after having rejected the 80% majority views and opinions, which had rejected the transition.
However, in the instant case, the difficulty would have been that of overcoming the previous ruling party’s previous opposition to the proposal for the enactment of a completely “new” constitution; preferring, instead, the making of any necessary amendments to the existing constitution; as we have already stated above, in order to maintain the “sanctity of the constitution, which protects it from any casual encroachment” .
But, fortunately, this rigid position has already been abandoned by the ruling party itself, when it authorized President Jakaya Kikwete to initiate the process which would lead to the enactment of a new constitution, but whose completion was subsequently stalled; and is now being actively revived by unanimous consent of all the concerned parties .
We are, therefore, ‘properly on course’ towards the achievement of the desired objective.
The making of a new constitution is, indeed, part of the events occurring in our voyage in the multi-party democracy flagship. We may therefore still encounter some ‘rough weather’ on the way. But, as Mwalimu Julius Nyerere, told us, “It can be done, just play your part”. Hence, let everyone of us “just play his part”, and we will happily accomplish our mission.
piomsekwa@gmail.com/0754767576.
But, fortunately, this rigid position has already been abandoned by the ruling party itself, when it authorized President Jakaya Kikwete to initiate the process which would lead to the enactment of a new constitution, but whose completion was subsequently stalled; and is now being actively revived by unanimous consent of all the concerned parties .
We are, therefore, ‘properly on course’ towards the achievement of the desired objective.
The making of a new constitution is, indeed, part of the events occurring in our voyage in the multi-party democracy flagship. We may therefore still encounter some ‘rough weather’ on the way. But, as Mwalimu Julius Nyerere, told us, “It can be done, just play your part”. Hence, let everyone of us “just play his part”, and we will happily accomplish our mission.
piomsekwa@gmail.com/0754767576.
Source: Daily News & Cde Msekwa today.
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